Date: 20030908
Docket: IMM-3982-02
Citation: 2003 FC 1039
Ottawa, Ontario, September 8th, 2003
Present: The Honourable Mr. Justice Blais
BETWEEN:
GURGEN BAHARYAN
HRIPSIME BAGHDASSARIAN
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision by the Refugee Division of the Immigration and Refugee Board (the panel), dated July 25, 2000, that Gurgen Baharyan and Hripsime Baghdassarian (the applicants) were not Convention Refugees under subsection 2(1) of the Immigration Act (the Act).
FACTS
[2] The applicants are citizens of Armenia. The principal applicant, Gurgen Baharyan, is 31 years old and his wife, Hripsime Baghdassarian, is 25 years old.
[3] The applicants left their country on November 8, 2000, to claim refugee status upon their arrival in Canada, stating that they have a well-founded fear of persecution based on their membership in a social group.
[4] The applicants' hearing before the panel was held on May 21, 2002, before a panel made up of members Yves Boisrond and Donald Archambault. During the hearing, the panel provided a French-Armenian and Armenian-French interpreter named Laura Dnoian.
[5] On July 25, 2002, the panel determined that the applicants were not Convention refugees.
[6] After the hearing, the applicants' counsel mandated Albert Tavadian, an interpreter specialized in Armenian and certified by the Immigration and Refugee Board (IRB) for many years, to listen to the audio transcripts to verify the quality of the translation from French to Armenian and from Armenian to French by Ms. Dnoian.
ISSUES
[7] 1. Did the errors identified in the interpretation prevent the applicants from getting a fair hearing and did they violate the rights guaranteed to them under section 14 of the Canadian Charter of Rights and Freedoms (the Charter)?
2. Did the panel err in finding that the applicants did not succeed in establishing a "reasonable possibility" of persecution if they returned to their country?
ANALYSIS
1. Did the errors identified in the interpretation prevent the applicants from getting a fair hearing and did they violate the rights guaranteed to them under section 14 of the Canadian Charter of Rights and Freedoms (the Charter)?
[8] The respondent's counsel submits, correctly, that to warrant the Court's intervention, it is not sufficient to prove that there were errors in interpretation; like Evans J., then of the Trial Division, in Lin v. Canada (Minister of Citizenship and Immigration) (1999), 1 Imm. L.R. (3d) 287, [1999] F.C.J. No. 1148, it must further ask if:
[16]. . . It is important not to lose sight of the ultimate question: were the defects in the interpretation so significant that they effectively deprived the individual of a reasonable opportunity to put his or her case fully to the tribunal?
[9] It is true that the testimony of the principal applicant was noticeably laborious.
[10] The applicants filed an affidavit by Mr. Tavadian that identified a number of passages in which the interpreter at the hearing, Ms. Dnoian, translated poorly from Armenian to French and from French to Armenian.
[11] The transcript of a hearing recorded on audiotapes can result in certain errors.
[12] I reviewed the stenographer's notes side by side with Mr. Tavadian's affidavit and found that most of the errors had been remedied before the end of the hearing and that none of these errors had any effect on the panel's findings.
[13] I noted that the transcript was prepared by Francine Langevin, who certified its authenticity and veracity. Mr. Tavadian himself, when referring to the transcript, made a number of errors that appear obvious upon reading paragraphs 10, 15.3, 20 and 21 of his affidavit, when compared to the certified copy, and substantially reduce the impact of his testimony.
[14] I find that the errors of the interpreter, Ms. Dnoian, did not distort the testimony and that they would not have changed the decision in any way.
[15] In Gajic v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 154, 2003 F.C.T. 108, O'Keefe J. states at paragraph 11:
[11] Even if I am in error that the interpreter properly interpreted the testimony and that if there were any errors, the errors were not material to the outcome of the case, there is one more reason that this ground should not be allowed. The issue of improper interpretation was not raised as an objection at the hearing before the tribunal and consequently, in this case, cannot be raised now to defeat the tribunal's determination. This point was clearly stated in Mohammadian v. Canada (Minister of Citizenship and Immigration) [2001] 4 F.C. 85 (F.C.A.) at paragraph 19:
As I have indicated, in light of his experience at the very first sitting of the Refugee Division the appellant appears to have been well aware of his right to the assistance of a qualified interpreter. When his conduct during the whole of the third sitting and for some time afterward is weighed with his undoubted knowledge of his right, it is difficult to construe that conduct as other than a clear indication that the quality of interpretation was satisfactory to him during the hearing itself. In my view, therefore, Pelletier J. did not err in determining that the appellant had waived his right under section 14 of the Charter by failing to object to the quality of the interpretation at the first opportunity during the hearing into his claim for refugee status.
[16] In Haque v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1114, Lutfy J., as he then was, states:
[1] The sole issue raised in this application for judicial review is the accuracy of the interpretation of the testimony during the hearing of the applicants'claims for refugee status. The applicants are the parents and two minor children of the same family. The Convention Refugee Determination Division ("the Tribunal") concluded that the father's ("the principal applicant") testimony concerning the events leading up to the family's departure from Bangladesh was not credible and determined that the applicants were not Convention refugees.
. . .
[6] Substantially all, if not all, other discrepancies mentioned in the report are acknowledged by its author to be minor, somewhat lacking in precision or subsequently corrected. I find that none is material to the hearing and the Tribunal's decision.
[7] The errors and omissions listed in the report are not of the kind to have caused prejudice to the applicants. [See Note 3 below] Without deciding whether the decision of the Supreme Court of Canada in R. v. Tran [See Note 4 below] applies to a refugee hearing, I find that the applicants have failed to establish that the interpretation of the testimony fell short of the criteria of continuity, precision, impartiality, competency and contemporaneousness set out by Chief Justice Lamer. I adopt the reasoning of my colleague Madam Justice McGillis in Banegas v. Canada (Minister of Citizenship and Immigration) [See Note 5 below] and, in particular, her following comments which are equally applicable to this case:
Note 3: Tung v. Canada (Minister of Employment and Immigration) (1991), 124 N.R. 388 (F.C.A.).
Note 4: [1994] 2 S.C.R. 951
Note 5: [1997] F.C.J. No. 928 (QL)
In particular, none of the alleged errors in interpretation affected in any manner the various inconsistencies in the applicant's evidence which gave rise to the adverse finding of credibility.... During the course of his hearing, the applicant indicated that he understood the interpreter, gave responsible answers to the questions posed and made no objection, either personally or through his counsel, to the quality of the interpretation. More importantly, the applicant did not state in his affidavit that he did not understand the proceedings.
[See Note 6 below]
Note 6: Ibid. at paragraph 7.
[17] The principal applicant did not succeed in persuading the Court that the unfavourable findings of the panel could be founded, in part, on erroneous findings of fact that are attributable to translation problems.
2. Did the panel err in finding that the applicants did not succeed in establishing a "reasonable possibility"of persecution if they returned to their country?
[18] The applicants do not contest the merit of the panel's decision that their fear of persecution is not connected with any of the grounds listed in the definition of Convention refugee.
[19] In examining the question of whether a victim was a member of a particular social group, McKeown J. found that this is not the case in Mortera v. Canada (Minister of Employment and Immigration) (1993), 71 F.T.R. 236, [1993] F.C.J. No. 1319:
[3] . . . The applicants submit that the applicants fall within the third category. While it is true that capitalists or business class persons were thought to be a persecuted group at the time the refugee definitions were being determined, the situation is different now. The NPA is not part of the communist monolith as it existed after the Second World War and is strictly a rebel group within the Philippines who are or allegedly are called communists. In my view, in developing the categories, the Court rejected a broad definition of a particular social group comprising basically any alliance of individuals who have a common objective or an interpretation which characterizes a social group merely by virtue of their common victimization as the objects of persecution. The applicants as wealthy persons or landlords are not part of a particular social group. There was no evidence that the applicants were informers or that the NPA knew they were informers. The government was aware from other sources that the applicants had been subject to extortion.
[20] See also, in the same vein, Espina v. Canada (Minister of Citizenship and Immigration) (1998), 160 F.T.R. 71, [1998] F.C.J. No. 1755, at paragraphs 26 to 31.
[21] I reviewed the panel's decision, the transcript as well as the evidence in the record and I was unable to find anything that would warrant the Court's intervention.
ORDER
[1] Consequently, this application for judicial review is dismissed.
[2] No question for certification.
"Pierre Blais"
JUDGE
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3982-02
STYLE OF CAUSE:
GURGEN BAHARYAN
HRIPSIME BAGHDASSARIAN
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 5, 2003
REASONS FOR ORDER AND ORDER: The Honourable Mr. Justice Blais
DATE OF REASONS: September 8, 2003
APPEARANCES:
Alain Joffe FOR THE APPLICANTS
Michèle Joubert FOR THE RESPONDENT
SOLICITORS OF RECORD:
Alain Joffe FOR THE APPLICANTS
Montréal, Quebec
Morris Rosenberg
Deputy Attorney General of Canada FOR THE RESPONDENT
Montréal, Quebec